Opinion
Docket No. CR-011034-23BX
12-14-2023
The People of the State of New York, v. Julia Valentin, Defendant.
For the People: Darcel D. Clark, District Attorney, Bronx County (by: Jean Paul Stefan, Assistant District Attorney) For the Defendant: The Bronx Defenders (by: Lisa Boesen, Esq., admitted pro hac vice)
Unpublished Opinion
For the People: Darcel D. Clark, District Attorney, Bronx County (by: Jean Paul Stefan, Assistant District Attorney)
For the Defendant: The Bronx Defenders (by: Lisa Boesen, Esq., admitted pro hac vice)
YADHIRA GONZÁLEZ-TAYLOR, J.
By notice of omnibus motion dated October 13, 2023, defendant moves alternatively for dismissal of the accusatory instrument for facial insufficiency pursuant to Criminal Procedure Law ("CPL") §§170.30 (1), 170.30 (1) (a), 170.30 (1) (f), 170.35 (1) (a) and 170.35 (1) (b); for dismissal pursuant to CPL §§ 30.30 and 170.30 because the People's Certificate of Compliance ("CoC") was illusory and based upon speedy trial grounds; for an order granting sanctions pursuant to CPL § 245.80 (2) for the failure to disclose evidence; and for an order granting suppression and preclusion of evidence pursuant to Huntley/Dunaway/Payton, Rodriguez/Wade/Crews and Sandoval/Ventimiglia/Molineux, respectively. Additionally, defendant requests the right to file a reply brief and for hearings on the underlying facts pursuant to People v Luperon, 85 N.Y.2d 71 [1995] and People v Allard, 28 N.Y.3d 41 [2016], respectively, if the People oppose the motion, and for such additional relief as this Court deems just and proper. The People opposed the motion in its entirety.
Upon review and consideration of the submissions, court file and relevant legal authority, defendant's motion is GRANTED in part and DENIED in part, as follows:
Defendant's motion to dismiss the information for facial insufficiency pursuant to §§ 170.30 (1), 170.30 (1) (a), 170.30 (1) (f), 170.35 (1) (a) and 170.35 (1) (b) is DENIED; and
Defendant's motion for dismissal pursuant to CPL §§ 30.30 and 170.30 is DENIED; and
The People's CoC filed on June 8, 2023 is deemed VALID; and
Defendant's request for sanctions pursuant to CPL § 245.80 (2) is DENIED; and
Defendant's request for orders suppressing evidence is DENIED but his request for Huntley/Dunaway/Payton and Wade/Crews/Rodriguez pre-trial hearings is GRANTED; and
Defendant's request for an order precluding evidence, or a Sandoval/Ventimiglia pre-trial hearing, is respectfully REFERRED to the trial court; and
Defendant's request for a hearing on the underlying facts pursuant to Luperon, supra and Allard, supra is DENIED; and
The People are DIRECTED to comply with their continuing discovery obligations pursuant to CPL § 245, including Brady disclosures; and
Defense counsel is DIRECTED to certify discovery compliance within 30 days of the date of this Decision and Order pursuant to CPL§§ 245.20 (4) and 245.50 (2).
RELEVANT PROCEDURAL BACKGROUND
On May 28, 2023, defendant Julia Valentin was arraigned and charged with one count each of Penal Law ("PL") §§ 150.01 (arson in the fifth degree) and 145.00 (1) (criminal mischief in the fourth degree), both misdemeanors. At the next appearance on July 28, 2023, the People advised the court that their CoC and Statement of Readiness ("SoR") had been filed on June 8, 2023. On September 15, 2023, the People served their supplemental CoC ("SCoC"). At the appearance held on September 23, 2023, defense counsel requested a motion schedule to challenge the validity of the People's CoC. The People opposed the motion on November 3, 2023 and defendant filed a reply brief on November 13, 2023.
DISCUSSION
I. Applicable Legal Standards
CPL § 30.30 Challenge
In a motion to dismiss misdemeanor charges pursuant to CPL § 30.30 (1), a defendant has the initial burden to demonstrate that the prosecution failed to declare readiness for trial within ninety days (see CPL § 30.30 [1] [b]); see Luperon at 77-78). Generally, a criminal action is commenced by the filing of an accusatory instrument against a defendant, and it is settled law that the date on which the action is commenced is excluded from the CPL § 30.30 computation (see CPL § 1.20 [17]; People v Stiles, 7 N.Y.2d 765, 767 [1987]).
Following legislative reforms to the CPL, after January 1, 2020, the People must now also satisfy their statutory obligations pursuant to CPL § 245.50 (3), which provides that "the prosecution shall not be deemed ready for trial for purposes of section 30.30 of this chapter until it has filed a proper certificate pursuant to subdivision one of this section" (see People v Kendzia, 64 N.Y.2d 331, 337 [1985]; People v Pierna, 74 Misc.3d 1072, 1087 [Crim Ct, Bronx County 2022]; People v Aquino, 72 Misc.3d 518, 520 [Crim Ct, Kings County 2021]). Consequently, courts examine the prosecution's efforts to ensure that it has served all known discoverable materials pursuant to CPL § 245.20 to determine the validity of a CoC (see People v Adrovic, 69 Misc.3d 563, 574-575 [Crim Ct, Kings County 2020]; People v Vargas, 76 Misc.3d 646, 652 [Crim Ct, Bronx County 2022]).
Facial Insufficiency Challenge
To meet the jurisdictional standard for facial sufficiency, a misdemeanor complaint "need only set forth facts that establish reasonable cause to believe that the defendant committed the charged offense" (see People v Smalls, 26 N.Y.3d 1064, 1066 [2015]; see also CPL § 100.40 [1] [b]; CPL § 70.10). The accusatory instrument must set forth non-hearsay facts of an evidentiary nature which, if true, establish every element of the offense charged (see People v Suber, 19 N.Y.3d 247 [2012]; People v Dumas, 68 N.Y.2d 729 [1986]). It is well-settled that "mere conclusory allegations are insufficient [ ] and a purported information which fails to meet these requirements is fatally defective" (see People v Pamulo, 48 Misc.3d 1227 [A], 2015 NY Slip Op 51286 [U], **2 [Crim Ct, New York County 2015] [citations omitted] citing People v Alejandro, 70 N.Y.2d 133, 136 [1987]). However, "[t]he court should approach factual allegations with a fair, not overly restrictive, or technical reading" (see People v Suquilanda, 80 Misc.3d 1220 [A], 2023 NY Slip Op 51045 [U], *2 [Crim Ct, Bronx County 2023] citing People v Casey, 95 N.Y.2d 354, 360 [2000]).
However, "[t]he prima facie case requirement does not necessitate that the information allege facts that would prove defendant's guilt beyond a reasonable doubt" (see People v Washington, 46 Misc.3d 1210 [A], 2015 NY Slip Op 50030 [U], ***3 [Crim Ct, New York County 2015] [internal citations omitted]. Consequently, the accusatory instrument need only set forth factual allegations which "give an accused sufficient notice to prepare a defense and are adequately detailed to prevent a defendant from being tried twice for the same offense" (see id. [internal citations omitted]).
II. The Parties' Arguments
Defense counsel asserts that a significant amount of discovery remained outstanding, including FDNY records, when the People filed their CoC and SoR (affirmation of defendant's counsel at 13). Counsel argues that the FDNY is a law enforcement agency and, thus, these records were known to the prosecution and considered to be within their actual possession (affirmation of defendant's counsel at 13-14). Defendant avers that Giglio materials should be subject to automatic disclosure irrespective of the People's decision to not call any NYPD officers as trial witnesses (affirmation of defendant's counsel at 14). Counsel states that the accusatory instrument is facially insufficient because it fails to establish that damage was caused to the tile flooring at the subject location and that the reference to "burnt marks" does not mention permanency, nor that the floor was destroyed and in need of repair (affirmation of defendant's counsel at 16-17).
Defendant requests suppression of any statements for which notice was served, including statements to FDNY investigators which were purportedly made in violation of her Miranda rights or, alternatively, a Huntley/Dunaway/Payton and Rodriguez/Wade/Crews pre-trial hearing (affirmation of defendant's counsel at 20-21). Defendant further requests preclusion of any evidence concerning prior convictions or bad acts or, alternatively, a Sandoval/Ventimiglia/Molineux hearing to determine their admissibility (affirmation of defendant's counsel at 22-23). Counsel reserves defendant's right to file further motions (affirmation of defendant's counsel at 23). Lastly, defendant's reply brief reiterates her prior arguments and further denies the charge that counsel ambushed the People by making belated inquiries for outstanding disclosure (affirmation of defendant's counsel at 4, 7).
Initially, the People aver that their CoC was valid even though certain items of discovery remained outstanding because they had exercised due diligence to obtain materials which were not in their possession, including notes from the investigating Fire Marshal ("FM") and contact information for witnesses (People's affirmation at ¶¶ A, B). The prosecution further argues that it served a court-ordered subpoena to obtain Giglio records for the investigating FM, conducted an in-house search for Giglio material and disclosed other materials, including NYPD tapes, records, and PSA command lists, upon receipt (People's affirmation at ¶ B). The People argue that counsel was impermissibly delayed in confirming outstanding disclosures and that some items which were purported to be outstanding had already been disclosed (People's affirmation at ¶ B).
The People maintain that no Giglio material was discovered for FM Wakie and that they have no duty to disclose disciplinary records concerning NYPD officers who were not involved in the investigation of the incident and would therefore not be called to testify at trial (People's affirmation at ¶ C). The prosecution states that striking the CoC is too drastic where CPL § 245.80 (1) provides less severe remedies to address discovery deficiencies (People's affirmation at ¶ E). The People assert that their SoR was timely and that their declaration could still be held timely even if their CoC was found illusory because of special circumstances (People's affirmation at ¶¶ G, II). The prosecution avers that the accusatory instrument is facially sufficient and jurisdictionally sound because the reference to "burnt marks" demonstrates that the property was damaged, and it is of no import how the damage is quantified because even the slightest demonstration satisfied the statutory requirement (People's affirmation at ¶ III). Lastly, the People oppose defendant's request for orders to suppress and preclude or, alternatively, Huntley/Dunaway/Payton, Rodriguez/Wade/Crews, and Sandoval/Ventimiglia/Molineux hearings, as well as defendant's reservation of rights to file additional motions (People's affirmation at ¶¶ IV, V, VI, VII).
III. The Court's Analysis
Facial Insufficiency Claim
In pertinent part, the complaint provides that on January 4, 2023 at approximately 6:16 p.m. inside of 1700 Hoe Avenue, County of the Bronx, State of New York, PO (FM) Joseph Wakie of FDNY, states that:
Deponent states that, at the above time and place, he observed via video surveillance, defendant to be inside the above location holding a bottle of lighter fluids and a piece of paper. Deponent further states that he observed defendant to then walk in the vicinity of apartment 1C holding said lighter fluid but no longer holding a piece of paper. Deponent further states that he observed a fire ignited in the vicinity of apartment 1C. deponent further states that he observed burnt marks on the floor tile of said location.
Deponent is further informed by D. H. that she is the building manager of said location, and as such she is the lawful custodian of said location and did not give defendant permission or authority to damage said floor.
The name of the complaining witness have been partially redacted for publication in accordance with section 12.4 (f) of the Privacy Guidelines for New York Official Reports.
A. Arson in the Fifth Degree
Penal Law § 150.01 provides that "a person is guilty of Arson in the Fifth Degree when he or she intentionally damages property of another without the consent of the owner by intentionally starting a fire or causing an explosion" (see PL § 150.01). New York Criminal Jury Instructions ("CJI") further provides, in pertinent part, that "Intent means conscious objective or purpose. Thus, a person INTENTIONALLY damages property by INTENTIONALLY starting a fire or causing an explosion when that person's conscious objective or purpose is to cause such damage by that means" (see (CJI2d[NY] Penal Law § 150.01, https://www.nycourts.gov/judges/cji/2-PenalLaw/150/150-01.pdf [last accessed December 13, 2023]). The CJI further provides, in pertinent part, that "[a] person DAMAGES PROPERTY when that person causes the slightest damage to property. Even proof of damage short of burning, such as charring, is sufficient to establish damage" (see id. [emphasis added]).
The accusatory instrument alleges that the deponent observed burnt marks on the floor tile. Viewed in the light most favorable to the People, "burnt marks" satisfies the requisite quantum of proof where "damage short of burning[,] including proof of charring [,] is sufficient to establish this element of the crime" (see People v McDonald, 68 N.Y.2d 1, 13 [1986][emphasis added][internal citations omitted]. Defendant's argument that the failure to allege permanency, or that the ground [tile] was destroyed and needed to be repaired, is wholly unavailing where the prima facie facial sufficiency requirement does not necessitate that the information allege facts that would prove defendant's guilt beyond a reasonable doubt" (see Washington, 2015 NY Slip Op 50030 [U], ***3).
B. Criminal Mischief in the Fourth Degree
Penal Law § 145.00 (1) provides that "a person is guilty of Criminal Mischief in the Fourth Degree when, having no right to do so nor any reasonable ground to believe that he or she has such right, that person intentionally damages property of another person" (see PL § 145.00 [1]). The CJI further provides, in pertinent part, that "Intent means conscious objective or purpose. Thus, a person INTENTIONALLY damages property of another person when that person's conscious objective or purpose is to damage property of another person" and "PROPERTY OF ANOTHER includes all property in which another person has an ownership interest, whether or not a person who damages the property, or any other person, may also have an interest in the property" (CJI2d[NY]PenalLaw§145.00[1], C:\Users\padul\OneDrive\Documents\ALLFILES\PLAYGROUND\JUDGES\CJI\2-PenalLaw\145\145-00(1).wpd (nycourts.gov) [last accessed December 13, 2023]).
Taken in the light most favorable to the People, the factual allegation that the deponent observed the defendant walk inside of the premises holding lighter fluid and a piece of paper, and then watched her exit without the paper while a fire ignited inside, coupled with the "burnt marks" observed on the floor tiling, suffice to establish probable cause to believe that defendant acted deliberately to damage the premises (see People v Hills, 95 N.Y.2d 947, 949 [2000]["While the extent of damage necessary to sustain a conviction for fourth degree criminal mischief is slight, some damage is required"][internal citations omitted]). In the case at bar, burnt marks on tiling satisfies the quantum of proof to demonstrate that some damage was done.
Accordingly, pursuant to CPL §§ 170.30 (1), 170.30 (1) (a), 170.30 (1) (f), 170.35 (1) (a) and 170.35 (1) (b), based upon the four corners of the complaint, the accusatory instrument is deemed facially sufficient and jurisdictionally sound on both charges.
CoC Challenge: Belated Disclosures
A. FDNY Records
Defendant contends that FDNY records were presumptively within the People's possession because FDNY is a law enforcement agency. This Court and courts of concomitant jurisdiction have held that EMS records are not within the purview of CPL § 245.20 automatic disclosures (see People v Alvarez, 71 Misc.3d 1206 [A], 2021 NY Slip Op 50292 [U], *5 [Sup Ct, Queens County 2021][EMS records were not subject to automatic disclosure because FDNY was not working in a law enforcement capacity when the defendant was removed from the precinct to the hospital]; People v Nichols, 79 Misc.3d 1211 [A], 2023 NY Slip Op 50591 [U], *7 [Crim Ct, Bronx County 2023] [The People had no duty to procure EMS materials which the defense could obtain via subpoena duces tecum); compare People v Hernandez, 80 Misc.3d 1035, 1040 [Crim Ct, Bronx County 2023][EMS medical records were found not to be within the People's control, nor any law enforcement entity under their direction], with People v Rahman, 79 Misc.3d 129 [A], 2023 NY Slip Op 50692 [U], *3 [App Term, 2d Dept 2023] [The Appellate Term, Second Department, affirmed a lower court's decision to strike the People's CoC where the People inexplicably delayed their request for EMS records for treatment made at the request or direction of a public servant engaged in law enforcement activity]). However, the facts at bar concern an alleged arson.
Criminal Procedure Law § 1.20 (34) (i) enumerates as police officers "[t]he Chief and deputy fire marshals, the supervising fire marshals and the fire marshals of the bureau of fire investigation of the New York City fire department" (see CPL § 1.20 [34] [i]). Consequently, and based upon the circumstances presented, FM Wakie was factually and functionally vested with arrest and investigatory authority, and his involvement was integral to the prosecution's case (see People v Jackson, 154 Misc.2d 718, 726-727 [ Sup Ct, Kings County 1992] ["It is the duty of the Fire Department on behalf of the government, to investigate fires"]. Here, the People's obligation to disclose FDNY records is mandated by CPL § 245.20 (1), and CPL § 245.55 (1), which provides that the People "shall endeavor to ensure that a flow of information is maintained between the police and other investigative personnel" (see CPL § 245.55 [1] [emphasis added]). Accordingly, the Court must examine the People's diligence to disclose this information, and not merely to make it available for discovery.
The record establishes that appended to the People's CoC, dated June 8, 2023, were detailed items concerning the alleged incident including, witness information, surveillance video/footage, a Fire Incident Report, FDNY Bureau of Fire Investigation ("BFI") Report, BFI Response Information Ticket, 911 audio recording and photos. Additionally, the CoC advised the defense that a subpoena had been issued to the FDNY for Giglio records pertaining to FM Wakie as there were no such NYPD records. The Court credits the People's representation that when defense counsel endeavored to discuss outstanding discovery, over three months following arraignment, they responded by serving an SCoC on September 15, 2023, which provided items, some of which were duplicative of their prior disclosure, including witness information, black and white photos where color photos had already been exchanged, an unofficial Fire Incident Report where an official report had previously been provided, and the FM's dispatch recordings.
As discussed in People v Henriquez, 80 Misc.3d 1220 [A], 2023 NY Slip Op 51044 [U], *3 [Crim Ct, Bronx County 2023], "defense counsel cannot strategically delay their CoC challenge in the hope that the People's speedy trial time will exhaust before their disclosures are supplemented, as such a course would undoubtedly contravene the Legislative intent which animates CPL § 245.50 (4) (b) (see Henriquez, 2023 NY Slip Op 51044 [U], *3 [internal citations omitted]; CPL § 245.50 [4] [b]). Here, counsel's representation that on September 14, 2023, 109 days after arraignment, she "reached out to the assigned after making a more thorough review of the discovery that had been provided" falls short of the statutory requirement that the party entitled to discovery notify or alert opposing counsel "as soon as practicable" (see CPL § 245.50 [4] [b]).
We find that the People exercised due diligence to disclose FDNY materials prior to filing their CoC and that the facts at bar demonstrate their good faith effort to comply with their disclosure obligations prior to and after filing their CoC. Consequently, defendant's request for an order imposing sanctions pursuant to CPL § 245.80 (2) is summarily denied as unwarranted.
B. Giglio Records for Non-Testifying Officers
The Court credits the People's representation that there were no responsive materials to either an NYPD search or an FDNY subpoena for Giglio records concerning FM Wakie, the arresting officer who conducted the investigation of the incident.
Although we have held that the People cannot hermetically shield a non-testifying officer from Giglio disclosure, such disclosure should be premised upon an argument that the officer played an integral role in the arrest and/or investigation of the incident such that disclosure is warranted (see People v Peralta, 79 Misc.3d 945, 956-957 [Crim Ct, Bronx County 2023]). Defense counsel has advanced no such arguments.
Accordingly, the prosecution has satisfied its CPL § 245.20 (1) (k) automatic discovery obligations.
IV. Defendant's Request for a Hearing if the Motion is Denied
If her motion to dismiss is denied, defendant requests a hearing on the underlying facts pursuant to Luperon, supra and Allard, supra.
However, the Court finds that the People's opposition has settled all factual disputes. Thus, there are no unresolved disputes which require a hearing and defendant's request is denied.
V. The CPL § 30.30 Calculation
Criminal Procedure Law § 245.50 (3) provides that "the prosecution shall not be deemed ready for trial for purposes of section 30.30 of this chapter until it has filed a proper certificate pursuant to subdivision one of this section" (see Pierna, 74 Misc.3d at 1087 [internal quotation marks omitted]; People v Aquino, 72 Misc.3d 518, 520, 146 N.Y.S.3d 906 [Crim Ct, Kings County 2021]).
In a motion to dismiss misdemeanor charges pursuant to CPL § 30.30 (1), the defendant has the initial burden to demonstrate that the prosecution failed to declare readiness for trial within the statutorily prescribed time, 90 days (see CPL § 30.30 [1] [b]); Luperon at 77-78. The burden then shifts to the prosecution to identify excludable delays (see Luperon at 78).
In the case at bar, the People's 30.30 calculation commenced on May 29, 2023, the day after defendant's arraignment. At the next appearance on July 28, 2023, the People advised that their CoC and SoR had been filed off-calendar on June 8, 2023 (May 29, 2023 - July 28, 2023: 12 days charged to the People).
On the next appearance on September 22, 2023, the People maintained their readiness and defendant was given a motion schedule to challenge the validity of the People's CoC (July 28, 2023 - September 22, 2023: 0 days charged to the People).
Consequently, 12 days are chargeable to the People and, thus, the prosecution was timely pursuant to CPL § 30.30 (1) (b).
VI. Defendant's Request for Orders to Suppress and Preclude Evidence
Defendant moves for an order suppressing evidence or, alternatively, granting pre-trial hearings pursuant to Huntley/Dunaway/Payton and Wade/Crews/Rodriguez; and for an order precluding evidence of defendant's prior convictions or bad acts pursuant to Sandoval/Ventimiglia/Molineux.
Defendant's request for an order of suppression is denied and issues of preclusion are respectfully referred to the trial court for consideration. However, the Court grants defendant's request for Huntley/Dunaway/Payton and Wade/Crews/Rodriguez pre-trial hearings.
CONCLUSION
Based upon the foregoing, defendant's motion is GRANTED in part and DENIED in part, as follows:
Defendant's motion to dismiss the information for facial insufficiency pursuant to §§ 170.30 (1), 170.30 (1) (a), 170.30 (1) (f), 170.35 (1) (a) and 170.35 (1) (b) is DENIED; and
Defendant's motion for dismissal pursuant to CPL §§ 30.30 and 170.30 is DENIED; and
The People's CoC, filed on June 8, 2023, is deemed VALID; and
Defendant's request for sanctions pursuant to CPL § 245.80 (2) is DENIED; and
Defendant's request for orders suppressing evidence is DENIED but her request for Huntley/Dunaway/Payton and Wade/Crews/Rodriguez pre-trial hearings is GRANTED; and
Defendant's request for an order precluding evidence, or a Sandoval/Ventimiglia pre-trial hearing, is respectfully REFERRED to the trial court; and
Defendant's request for a hearing on the underlying facts pursuant to Luperon, supra and Allard, supra is DENIED; and
The People are DIRECTED to comply with their continuing discovery obligations pursuant to CPL § 245, including Brady disclosures; and
Defense counsel is DIRECTED to certify discovery compliance within 30 days of the date of this Decision and Order pursuant to CPL§§ 245.20 (4) and 245.50 (2).
This constitutes the opinion, decision, and order of the Court.